Religious Freedom In Focus, Volume 9

United States Department of Justice Civil Rights Division

RELIGIOUS FREEDOM IN FOCUS

March 2005 Volume 10

Religious Freedom in Focus is a periodic email update about the Civil Rights Division's religious liberty and religious discrimination cases. Assistant Attorney General R. Alexander Acosta has placed a priority on these cases. Through vigorous enforcement of:

Federal laws against arson and vandalism of houses of worship and bias crimes against people because of their faith; and

The Religious Land Use and Institutionalized Persons Act (RLUIPA);

and through participation as intervenor and friend-of-the-court in cases involving the denial of equal treatment based on religion, the Civil Rights Division is working to protect the right of people of all faiths to participate fully in public life.

Community College Reverses Ban on The Passion of the Christ After DOJ Intervention

The Civil Rights Division has closed its investigation of a Florida community college, after the school reversed course and removed its prior ban on a student group showing Mel Gibson’s The Passion of the Christ and agreed to remove other restrictions on the group’s activities.

The Christian Student Fellowship at Indian River Community College in Fort Pierce, Florida had sought to show The Passion of the Christ in November 2004, but was told that it could not because the film carried an R rating. The group protested that at least one R-rated movie had in fact been shown on campus recently. Moreover, the group pointed out that a theater group on campus called the “No Shame Theater” performed plays with graphic language, including a piece entitled “[expletive] for Jesus” that involved an actor telling a story about sexual acts intertwined with religious beliefs and religious symbols.

The Christian Student Fellowship also had been told that it could no longer meet on campus because of a new rule requiring a faculty advisor to attend all student group meetings. The Christian Student Fellowship could not find an advisor willing to attend all of its meetings, which involved prayers, singing, and Bible study.

The Civil Rights Division opened an investigation of the college on February 1, requesting documents and information about its policies and the allegations of the Christian Student Fellowship. That evening, the college issued a public statement that it would permit the Christian Student Fellowship to show The Passion of the Christ, acknowledged that it had not applied a consistent policy for public presentations by student groups in the past, and stated that it was adopting a new policy to ensure that protected speech would not be censored in the future. The school also informed the Department of Justice that it only would require faculty advisors to attend student groups’ business meetings, and that groups like the Christian Student Fellowship would be able to otherwise meet freely. In light of the school’s response, the Department of Justice closed its investigation on February 28.

“The college realized that it could not selectively ban The Passion of the Christ while permitting other works on campus that may also challenge students,” Assistant Attorney General for Civil Rights R. Alexander Acosta remarked. “We are pleased that the college recognized that it could not discriminate against the religious expression of its students.”

Civil Rights Division Settles Muslim Student Harassment Case

On March 1, the Civil Rights Division settled a case in which a Delaware student alleged she was harassed by a teacher because of her faith. In May 2004, the Department of Justice received a complaint that a teacher in the Cape Henlopen School District had harassed a fourth-grade Muslim girl, and that school officials had not taken adequate action in response. The Civil Rights Division opened an investigation, which was resolved by the March 1 settlement agreement.

The girl and her parents alleged that her teacher told the class that the “Koran teaches war and hatred” and made similar statements. They also alleged that the teacher had directed comments at the girl, such as ridiculing her because her mother wore a headscarf. These incidents led to severe ridicule by other students. The complaint also alleged that the same teacher also proselytized her students. As a result of the teacher’s actions, the Muslim girl experienced great distress and missed many days of school. When her parents complained, the school assigned the girl to a new class, but took no significant other action.

In the settlement agreement reached between the school district and the Civil Rights Division, the school agreed to provide teacher training on diversity and the school’s policies regarding religious expression, to provide a tolerance education program for all K-5 students, and to create specific performance expectations for the teacher and ensure that she achieves them.

“We are pleased that this case has been resolved without recourse to a lawsuit,” said R. Alexander Acosta, Assistant Attorney General for Civil Rights. “No student’s faith should be attacked by school employees, whose job it is to teach all children. Our country has long had a rich diversity of faith traditions, and the Department of Justice is committed to ensuring that people of all faiths are welcomed in our public institutions.”

The Civil Rights Division submitted a federal court brief on February 18 arguing that a Michigan school unconstitutionally censored a fifth-grade boy’s religious expression when it forbade him to pass out candy-cane ornaments with religious messages attached during a class exercise. The United States’ friend-of-the-court brief in the case, Curry v. Saginaw School District, argues that the boy’s speech was barred solely because it was religious, in violation of the Free Speech Clause. The brief also argues that the school’s asserted separation-of-church-and-state concerns were unfounded.

Every year, in mid-December, a Saginaw, Michigan elementary school holds an exercise called “Classroom City” in which each fifth-graders is asked to create, build, and market a product of his or her own choosing, and then “sell” the product to other students in exchange for pretend money in “stores” each child constructs from cardboard boxes in the school gymnasium. The activity is designed to teach children about business, commerce, and civics. In 2003, one fifth-grader chose to make candy-cane Christmas ornaments from pipe cleaners and beads to sell at Classroom City. He attached a card to each ornament entitled “The Meaning of the Candy Cane,” which described the religious significance of the colors and shape of the candy cane.

School officials, however, determined that the boy would have to remove the explanatory cards because of their religious content. His mother complained first to his teacher, and then to the school principal. However, after consultation with the assistant superintendent of the Saginaw schools, the principal informed his mother that the card was inappropriate in a public school because it was religious. The boy’s parents filed a First Amendment suit in federal court. The school has defended its actions on the ground that it sought to avoid disruption and to avoid a violation of the Establishment Clause of the Constitution.

The Civil Rights Division brief argues that the school’s actions discriminated against the boy’s speech in violation of the free speech clause, and that the school’s Establishment Clause defense was meritless. The brief explains that it is clear from the facts that other children would view the speech on the cards as the boy’s and would not attribute it to the school: “Given the facts that each student was given a choice of what to create; that more than 50 products were selected, designed, and promoted by individual students; and that students could purchase or not purchase any given product, there was no reasonable risk that students could have mistaken Joel’s speech for the school’s. The neutrality the Constitution demands both among religions and between the religion and non-religion requires equal access and equal treatment, not such disparate exclusion.”

Maui to Permit Church Construction; Suit Dismissed at U.S. Request

On the heels of an agreement between Maui and the Hale O Kaula congregation that will permit it to build a new church, the U.S. District Court in Hawaii granted the United States’ request to dismiss its suit alleging that Maui’s treatment of the church violated the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”). The United States’ suit, filed by the Civil Rights Division on July 10, 2003, was the first suit filed by the United States under RLUIPA.

Hale O Kaula is a small, nondenominational Christian church that has held services on Maui since 1960. In 1991, seeking a larger space to accommodate its approximately 60 members, the church bought 5.85 acres of land in the Pukalani area of Maui. The property was in an agricultural zone. In 1999, the church applied for a special use permit to build a small church on the property. As part of that application, the church sought to use a piece of the new property to grow food in support of its Joseph Ministry, which encourages practitioners to live in harmony with the land.

Despite the fact that at least five special use permits had previously been granted to churches of different denominations that sought to locate in agricultural zones, and the allowance of residences and various secular uses such as rodeo facilities, petting zoos, and sports fields in the zone, the Maui Planning Commission unanimously rejected the church’s application for a special use permit. The church brought an RLUIPA action against the church on September 19, 2001. On July 10, 2003, the United States filed a separate suit under its RLUIPA enforcement authority, alleging discrimination against the church. The county sought to have both suits dismissed on the grounds that RLUIPA was unconstitutional. Senior Judge Samuel King of the United States District Court for the District of Hawaii denied the county’s motion on December 29, 2003.

On March 8, 2004, the court ordered the United States, Maui County and the church to mediation. Mediation resulted in a tentative settlement between the church and the county that, after additional proceedings, culminated in a $700,000 payment to the church and a November 17, 2004 decision by the Maui Planning Commission to grant the church a special use permit. On December 22, 2004, the United States moved to dismiss its suit against the County in light of the finalized settlement agreement. On February 9, 2005, the court granted the United States’ motion to dismiss.

Assistant Attorney General R. Alexander Acosta applauded the decision: “We are pleased that this case has been resolved and that the discriminatory exclusion of this small church is now a thing of the past.”

The Department of Justice has opened 21 investigations under RLUIPA since January 2001, in cases involving mosques, synagogues, a Buddhist temple, a Sikh Gurdwara, and churches of various denominations. In addition to the Maui case, nine of these investigations to date have resulted in favorable outcomes.